The interim
decision of the District Court, Amsterdam, of 7 February 2018 caused quite
a stir among Brexit-watchers. The case concerned promised not only to be the
first reference to the Court of Justice on Brexit but also to raise one of the
most fundamental questions posed by the UK’s decision to withdraw from the EU:
whether, in the absence of an agreement to the contrary, withdrawal would necessarily
mean that UK nationals would lose their EU citizenship and the rights that
status gave them.

The proceedings had been brought
by seven claimants. The first five were UK nationals resident in the
Netherlands. The sixth and seventh were associations. One, Brexpats, had been
established to protect the interests of UK nationals affected by Brexit. Its
claim was found to be inadmissible. The other, CADS, had been established to
promote Anglo-Dutch trade relations. A challenge to the admissibility of its
claim was rejected. The defendants were the State of the Netherlands and the
Municipality of Amsterdam. The case was heard by Judge F B Bakels, a former
Vice President of the Netherlands Supreme Court who, it is understood, had
chosen to devote a short period of time before his retirement to hearing first
instance cases.

The claimants were seeking a
ruling that, should UK citizens retain EU citizenship after Brexit, the
defendants would respect the attendant rights of the first five claimants. In
particular, they asked the court to rule that the defendants should not agree
to implement any agreement between the UK and the EU27 which failed to
guarantee those rights. Such a ruling may not strictly speaking be necessary,
since the withdrawal agreement, as an act of secondary EU law, could not alter
the rights conferred by citizenship of the Union, which derive ultimately from
the TFEU. In practice, however, a ruling in the terms sought might avoid the
need for further litigation on the point.

Should the withdrawal of the UK
from the EU be found to remove from UK citizens their status as citizens of the
EU (as the wording of Article 20(1) TFEU would suggest), the claimants sought
an order requiring the Netherlands to carry out an individual assessment of the
compatibility with the principle of proportionality of any decision to restrict
rights deriving from EU citizenship; ordering the Municipality to give effect
to the individual assessments carried out; prohibiting the State from insisting
that one of the claimants should relinquish her UK nationality; and ordering
the Municipality and the State to facilitate multiple nationality for a person
seeking Netherlands nationality within two weeks of the court’s ruling. The
claimants argued that these claims required an authoritative ruling on the
effect of Article 20 TFEU. They had therefore drafted a number of questions
with a view to having them referred to the Court of Justice for a preliminary
ruling.

The claimants stated that they
had all made use of the fundamental freedoms to reside and work in another
Member State and that the uncertainty surrounding their future legal position
was already causing them harm. In organising their lives, they had to take
account of the distinct possibility that the Netherlands might after Brexit
classify them as third country nationals and require them to leave without conducting
an individual assessment of their circumstances. That threat meant that they
had to decide now whether to seek citizenship of the Netherlands. This was an
expensive process and might have consequences for their right to retain UK
nationality and therefore for their continuing right to visit the UK. There
were also questions about the status of partners who might or might not have UK
nationality; parents of UK nationality who had children born in the Netherlands;
and UK nationals in the Netherlands whose work made it essential for them to continue
to be able to travel freely throughout the EU27.

The judge ruled that, in order to
assess these claims, it was necessary to establish whether loss of the status
of nationality of a Member State automatically resulted in loss of citizenship
of the Union or whether considerations of fundamental, acquired and minority
rights and solidarity between EU citizens might require that outcome to be
qualified. He therefore announced his intention to submit two questions to the
Court of Justice:

Whether, in
the absence of an agreement on the matter in the Brexit negotiations, UK
withdrawal from the EU would automatically deprive UK nationals of their status
as EU citizens and of the rights and freedoms attaching thereto;

If not,
whether those rights and freedoms were subject to any conditions or
restrictions.

The parties were given the right
to comment on the proposed questions within a week of the judgment. They were
expressly told they could not comment on any other aspect of the judgment or on
the judge’s intention to refer questions to the Court of Justice.

The decision of 20 February 2018

It therefore seemed likely that
the Court of Justice would be given the opportunity to rule on issues of
profound significance for the scope of EU citizenship and the course of the
Brexit negotiations. However, on 20 February 2018, Judge Bakels granted the
State and the Municipality permission to appeal to the Court of Appeal, Amsterdam,
against his earlier ruling. The appellants argued that the uncertainty of which
the claimants were complaining could not be resolved by the proposed questions
because their legal position depended on the content of the withdrawal
agreement. This was not entirely correct because, as noted above, the
provisions of the TFEU on citizenship will take precedence over the terms of
the withdrawal agreement. The appellants rejected the claimants’ argument that
they were already suffering harm and asserted that there was no real dispute
between the parties.

Appearing to have a change of
heart, Judge Bakels decided to depart from the normal rule laid down by the
Netherlands Code of Civil Procedure that an appeal could be lodged only at the
same time as the final judgment. He acknowledged that this did not in itself
suspend the decision to refer to the Court of Justice. However, he observed
that it would be contrary to due process for a reference to be made at this
stage and decided that this should not now be done. It would be for the Court
of Appeal, Amsterdam, to decide whether a reference should be made and, if so,
what questions should be referred.

Challenging reference decisions

There is a considerable body of
case law on the circumstances in which a decision of a national court to make a
reference to the Court of Justice may be challenged before a superior national
court. It may seem surprising that such an appeal is possible. In Joined Cases
C-332/92, C-333/92 and C-335/92, Eurico
Italia, for example, the Court of Justice pointed out (para 17) that

‘it has
consistently held that it is solely for the national courts before which
actions are brought, and which must bear the responsibility for the subsequent
judicial decision, to determine in the light of the special features of each
case both the need for a preliminary ruling in order to enable them to deliver
judgment and the relevance of the questions which they submit to the Court.’

Moreover, the Court made it clear
in Case 166/73 Rheinmühlen
v Einfuhr- und Vorratsstelle Getreidethat a national court cannot be
deprived of its power to make a reference by the rulings of superior national
courts. Indeed, in that case Advocate General Warner argued (at pp. 43-44) that
‘national legislation cannot effectively provide for a right of appeal against
an order of a lower Court referring a question to this Court.’ The discretion
conferred on lower national courts by what is now Article 267 TFEU, he said,
was exercisable at any stage of proceedings before them and could not ‘be
fettered by any rule or provision of national law’ (at p. 47).

The view of Advocate General
Warner was not initially followed by the Court. In Case 146/73 Rheinmuhlen-Düsseldorf (para 3), the
Court ruled:

‘in the case
of a court against whose decisions there is a judicial remedy under national
law, Article [267] does not preclude a decision of such a court referring a
question to this Court for a preliminary ruling from remaining subject to the
remedies normally available under national law.’

The Court added: ‘Nevertheless,
in the interests of clarity and legal certainty, this Court must abide by the
decision to refer, which must have its full effect so long as it has not been
revoked.’

In 2008, that approach was
substantially modified in Case C-210/06 Cartesio.
In that case, the Court of Justice declared (paras 95 and 96):

‘Where rules
of national law apply which relate to the right of appeal against a decision
making a reference for a preliminary ruling, and under those rules the main
proceedings remain pending before the referring court in their entirety, the
order for reference alone being the subject of a limited appeal, the autonomous
jurisdiction which Article [267 TFEU] confers on the referring court to make a
reference to the Court would be called into question, if – by varying the order
for reference, by setting it aside and by ordering the referring court to
resume the proceedings – the appellate court could prevent the referring court
from exercising the right, conferred on it by the [TFEU], to make a reference
to the Court.

In accordance
with Article [267 TFEU], the assessment of the relevance and necessity of the
question referred for a preliminary ruling is, in principle, the responsibility
of the referring court alone, subject to the limited verification made by the
Court in accordance with the case-law… Thus, it is for the referring court to
draw the proper inferences from a judgment delivered on an appeal against its
decision to refer and, in particular, to come to a conclusion as to whether it
is appropriate to maintain the reference for a preliminary ruling, or to amend
it or to withdraw it.’

The Court’s ruling in Cartesio effectively made judgments of
superior courts on the appropriateness of a reference advisory only. That outcome
might in some cases be incompatible with the national court hierarchy. In the Lady & Kid case (Order of 11
February 2010), the Danish Supreme Court therefore ruled that references made
by lower Danish courts should no longer be subject to appeal. (See M Broberg
and N Fenger, Preliminary References to
the European Court of Justice (OUP, 2nd ed, 2014) 329-330; M Broberg and N
Fenger, ‘Preliminary references as a right: but for whom? The extent to which
preliminary reference decisions can be subject to appeal’ (2011) 36 European
Law Review 276.) Similarly, in a decision of 30 March 2010, the Belgian Cour de
Cassation declared an appeal brought against a reference by a lower court
inadmissible (see K Lenaerts, I Maselis and K Gutman, EU Procedural Law (OUP,
2014, 81). The same conclusion was reached by the Irish Supreme Court as long
ago as 1983: see Campus Oil v Minister
for Industry and Energy [1984] 1 Common Market Law Reports 479; D O’Keeffe,
‘Appeals against an order to refer under Article 177 of the EEC Treaty’ (1984)
9 European Law Review 87.

It should be noted, however, that
Cartesio does not apply unless it is
only the decision of the lower court to make a reference that is the subject of
an appeal and where the main proceedings therefore ‘remain pending before the
referring court in their entirety’ (para 98). Thus, in Case C-525/06 Nationale
Loterij, the Court held that there was no need to reply to a reference
made by a court before which the case concerned was no longer pending, having
been brought in its entirety before a higher court. Responsibility for ensuring
that the outcome was consistent with the requirements of Union law in such
circumstances belonged to the latter court.

Implications for the Amsterdam proceedings

What are the implications of the
case law briefly summarised above for the proceedings brought before the
District Court, Amsterdam? It will be noted that no reference has so far been
made in those proceedings. It would therefore seem to follow that the argument
that a reference should be made will need to be repeated before the Amsterdam
Court of Appeal.

The question whether an appeal
could be brought against a decision of a national court not to make a reference
was considered by the Danish Supreme Court in Lady & Kid. It was held there that this remained possible and that,
if the appellate court decided that a reference should be made, that ruling
would be binding on the lower court. However, O’Keeffe (above, p103) argues
persuasively that ‘[t]he reference in a case where the appellate court finds it
necessary should be by order of the appellate court, otherwise the discretion
of the lower court under Article [267] is directly violated...’ This appears to
have been the view taken by Judge Bakels in his decision of 20 February 2018.

The grounds of appeal put forward
by the Netherlands Government are varied. On the central issue of the effect of
Article 20 TFEU, the Government asserts that this provision is acte clair and rejects the judge’s
reasoning on acquired rights. A national court might easily conclude that these
questions at least should be referred to the Court of Justice, provided it did
not accept the argument of the Netherlands Government that the case is artificial
or contrived.

‘…questions
concerning EU law enjoy a presumption of relevance. The Court may refuse to
give a ruling on a question referred by a national court only where it is quite
obvious that the interpretation, or the determination of validity, of a rule of
EU law that is sought bears no relation to the actual facts of the main action
or its purpose, where the problem is hypothetical, or where the Court does not
have before it the factual or legal material necessary to give a useful answer
to the questions submitted to it…’

This makes it necessary for the
national court to ‘give at least some explanation’ of why it has chosen the EU
provisions of which it is requesting an interpretation (Case C-370/12 Pringle,
para 84).

The claimants in the case under
discussion have given plausible explanations of the range of ways in which the
uncertainty surrounding their status is causing them direct and immediate harm.
Even if the claims of only one of the claimants were considered credible, that
would be enough to justify a reference to the Court of Justice. In his first
ruling, the judge was satisfied that there was in the circumstances ‘no
question of a hypothetical or notional dispute’. The questions he decided to
refer to the Court were based on a detailed examination of the legal background
and included extensive analysis of the case law of the Court. It therefore
seems unlikely that the Court would refuse to give a ruling if it were asked to
do so.

It is not clear why Judge Bakels
departed from the normal rule by permitting an appeal to be brought at the
interim stage and changed his mind about the desirability of a reference. If
the case were none the less to reach the Court of Justice by way of a reference
from either the District Court or the Court of Appeal, it would present the
Court of Justice with a welcome opportunity to clarify the scope of citizenship
of the Union. This would enable the Brexit negotiations to proceed on the basis
of a correct understanding of the law and provide a degree of certainty to
current citizens of the Union whose interests are in danger of being
overlooked.

Saturday, 24 March 2018

Last week saw significant
developments in the Brexit talks. On Monday March 19th, the EU27 and the UK
agreed on a large part of the proposed withdrawal
agreement, most notably the details of a transition period (lasting from Brexit
day in March 2019 to the end of 2020) which the UK was particularly concerned
to agree. (There were earlier drafts of the entire agreement on February
28 and March
15). Subsequently, on Friday March 23rd, the EU27 decided that
there was sufficient progress in the talks to move to adopt its guidelines
for the future relationship with the UK, which will take the form (for now) of
a declaration linked to the withdrawal agreement. Ultimately, that future
relationship will be regulated by separate treaties ratified after Brexit day.

For now, though, I will focus on
the core issue of the transition period, since it attracted a lot of
controversy during the week, in particular as regards fisheries and trade
issues. I’ve previously annotated
a first draft of the transition period rules, as proposed by the Commission,
and then updated
that in light of the UK
response to that draft.These
followed on from the negotiation guidelines on the transition period adopted by
the EU Council in January, which I annotated here.

Overall, the UK has obtained some
concessions during these talks: explicit powers to hold treaty talks with
non-EU countries; the possibility to abstain on controversial EU foreign policy
measures which it would have vetoed as a Member State; some greater
consultation rights; an attempt to consider the UK still part of treaties with
non-EU states for the time being; and protection against any grab of fisheries
catches in UK waters. However, the UK government had to concede on issues which
it had placed much stress on: taking fisheries catch issues out of the
transition period and not extending all acquired rights to EU27 citizens who
came to the UK during this period.

It seems likely that the UK
government was concerned about the economic impact of not agreeing a transition
period a year before Brexit day; in the event, that prospect has been averted.
But then again, the transition period is only one part of the withdrawal
agreement, and some controversial issues in the rest of that agreement have yet
to be agreed; the agreement would also then have to be ratified. So we can’t be
certain that the transition period will apply in practice yet.

For those concerned about the
transition period making the UK a “vassal state”, it should be noted that some Leaver
supporters had long advocated an interim period after EU membership based on
being a member of the EEA, which would have given the UK more rights to
consultation over EU legislation, less coverage by new EU laws, the possibility
of refusing to apply new laws and a different court to apply them in a less
mandatory way. So such critics might wish to ask why the UK government did not
pursue such an approach to the transition period – or explain why they have never
bothered to present a serious alternative proposal of their own (besides,
obviously, not continuing with Brexit at all).

The annex to this blog post is a
detailed annotation and analysis of the agreed rules on the transition period
in the withdrawal agreement. Before that though, I look in detail at two other
issues: how the specific provisions on the transition period fit into the
agreement as a whole; and what happens if the two sides want to extend the
transition period, given that it might be difficult to agree all aspects of the
UK/EU future relationship by the agreed deadline of end-2020.

Structure of the withdrawal agreement

The recent deal on the transition
period, which also includes agreement on a large part of the rest of the withdrawal
agreement, can only be understood fully in the context of the rest of that
agreement, which I’ll summarise here.

Part One of the withdrawal
agreement (Articles 1-7) sets out the “Common
Provisions”. These deal with basic issues like definitions and territorial
scope. This Part is agreed except for the rules on interpretation of the
agreement (Article 4).

Part Two of the withdrawal
agreement (Articles 8-35) deals with citizens’
rights. It is entirely agreed. It will mostly not apply until the end of
the transition period, and as part of the recent agreement, the UK government
has accepted that EU27 citizens arriving in the UK during the entire period
will retain the same rights as those who arrived before Brexit day.

Part Three of the agreement sets
out “separation provisions”
(Articles 36-120). These deal with issues like what happens to European Arrest
Warrants pending at the end of the transition period. This part will largely
apply as from the end of that period. It has been partly agreed, as follows:
issues of goods on the market, public procurement, and Euratom: mostly agreed; pending
criminal and police proceedings, data protection: mostly not agreed; civil
litigation: conflict of laws points agreed, but jurisdiction and mutual
recognition points not yet agreed; intellectual property rights: mostly agreed;
pending ECJ cases and administrative proceedings (like competition
investigations): not agreed; and other institutional issues (like privileges
and immunities): agreed.

Next, Part Four sets out the
rules on the transition period as
such (Articles 121-126). These provisions are annotated below. As noted already,
this part is fully agreed.

Part Five concerns the financial settlement (Articles 127-150).
It incorporates the earlier agreement that the UK is takes part in the EU’s
financial rules until the end of the transition period. (The end-2020 cut-off
date of the transition period in Article 121 matches the end of the current EU
budget cycle). This part is also fully agreed.

Part Six sets out “Final Provisions” (Articles 151-168). This
part is partly agreed. For instance, the rules on ECJ jurisdiction over EU
citizens (which applies, for the most part, for eight years after the end of
the transition period) is agreed (Article 151). So is the clause on a new
authority to help guarantee EU citizens’ rights, which might be shut down at
the end of that same eight-year period (Article 152). The UK and EU have agreed to continued ECJ
jurisdiction over EU budget law rules referred to in the financial settlement
part, but not yet to that Court’s continued jurisdiction over "separation
rules" (Article 153). The existence of a Joint Committee to monitor the
agreement and take some decisions to implement it is agreed (Articles 157-159),
but the rules on dispute settlement (Articles 162-165) – some of which would
apply during the transition period
and some of which would apply from after
that point – are not.

There will also be Protocols on Irish border issues and UK bases in Cyprus,
both of which would apply from the end of the transition period; the latter has
not yet been proposed. The parties have agreed that there will be a
"backstop" text on Irish border issues, which will apply if no other
solution can be found. This is a controversial issue, but the text has been
partially agreed: the Common Travel Area (fully agreed); equality rights (agreed
as a policy); movement of goods issues (not agreed); but electricity market and
state aids clauses agreed as a policy; a vague reference to other North/South
cooperation is agreed in principle; and some institutional issues are agreed.

Overall, then, a substantial
proportion of the withdrawal agreement is already agreed in principle. The main
issues outstanding – in increasing order of political difficulty – are parts of
the separation provisions, the general rules on dispute settlement, and Irish
border issues.

As noted above, it’s widely
believed that at least for some issues, it may prove necessary to extend the
transition period, since negotiations on the future EU/UK relationship might
not be complete by the end of 2020. Leaving aside the politics of the issue, is
that legally possible?

First of all, a procedural point:
it would arguably be possible to settle this (and other legal questions about
the withdrawal agreement) in advance, by using the special power to ask the ECJ
to interpret a planned agreement between the EU and a non-EU country in advance
(see Article
218(11) TFEU). While the UK is not now a non-EU country, it will be when
the withdrawal agreement applies, and while Article 50 TEU does not refer to
Article 218(11), such a quibble is excessively pedantic: the ECJ has always
interpreted its jurisdiction on this point widely, and the point of asking it
questions on the withdrawal agreement would be consistent with the established
purpose of Article 218, which is to avoid in advance complications which may
arise from legal problems which may arise in a future agreement between the EU
and a non-EU country. This reasoning applies a fortiori if one of the questions is whether the withdrawal
agreement can even be amended after
Brexit day, in part or whole: if it can’t, then the complications which may
arise will be greater than ever.

Although the Court has to give
its rulings in such cases before a treaty enters into force (the withdrawal
agreement is set to come into force on 30 March 2019: Article 168), and its
judgments usually take over a year to decide, it can fast-track rulings into
four to six months if necessary. However, since any adverse ruling by the ECJ
would mean that the draft withdrawal agreement would have to be amended to
address the Court’s concerns, and in any event there would need to be time for
ratification of the agreement after the Court’s judgment, the clock is ticking
if the Court is going to be asked to rule on the draft.

Moving to the substantive issue, can the withdrawal agreement be amended
after Brexit day, and if so, how?The
drafting of Article
50 TEU is not explicit on this point, but it seems to set out special rules
only relating to a state in the process
of withdrawal – not a state which has already
left. So Article 50 can’t apply after Brexit day to amend the withdrawal
agreement. At first sight, though, other EU treaty provisions could be the
basis of an EU power to amend the withdrawal agreement after Brexit day, with
the mutual agreement of the UK. This might lead to a more difficult process of
amendment, since Article 50 provides for the EU only as a party to the
withdrawal agreement, not its Member States, as well as qualified majority
voting, rather than unanimous voting; and there is a good chance that
requirements of unanimous voting and national ratification would apply after
Brexit day.

But at least it would be possible
– or would it? Some have argued not, for two reasons. The starting point is the
rule in the Vienna
Convention on the Law of Treaties (Article 39), which says simply that the
parties to a treaty can amend it using the general rules on negotiating a
treaty, “except in so far as the treaty may otherwise provide.” The withdrawal
agreement does not explicitly rule out amendments, or explicitly provide for
them either, except for a few amendment powers for the Joint Committee which it
sets up to amend it. Does that mean a
contrario that the parties can’t amend it otherwise? Such an interpretation
is not EU practice: for instance, the Association Council set up to implement
the EU/Turkey
Association Agreement has very broad powers, yet he EU and Turkey have also
agreed Protocols
to that treaty in practice.

The second argument: given that the
Article 50 powers expire on Brexit day, should it necessarily follow that the
EU is prohibited from using other powers to amend the withdrawal agreement after
Brexit day? In the absence of express wording to that effect, this argument
that the agreement must be legally “frozen” is untenable. The text of the
agreement already specifies that other treaties can replace it as regards
foreign policy and the Irish border, and it would be odd if the parties could
not choose to amend it otherwise even on a minor point – for instance, to take
a different (or supplementary) approach to how to deal with European Arrest Warrants
pending at the end of the transition period, or to add rules on how to deal
with issues that were left out of the withdrawal agreement because the parties
forgot about them or couldn’t agree on them at the time. For example, the draft
agreement has no “separation” rule on what happens to the transfer of
responsibility for asylum applications which are pending at the end of the
transition period.

To some extent, the dynamism of
the agreement itself inherently raises the possibility that new legal issues
will arise which weren’t foreseen when it was signed – given that the UK will
be bound by new EU laws which are adopted during the transition period, and
even earlier laws which are adopted between the signature and entry into force
of the withdrawal agreement. (There might be quite a few of the latter, since Brexit
day coincides with the end of a European Parliament term, when a large batch of
outstanding legislation is usually agreed). The post-signature case law of national,
EU and international courts might raise issues that the parties might choose to
take into account too.

However, this brings to another
problem. Any prospect of providing in the withdrawal agreement itself for an
indefinite renewal of the transition/implementation period could raise legal
issues as to whether this falls beyond the scope of Article 50 TEU, given that
(on the EU’s interpretation, at least) Article 50 cannot serve as the basis for
a permanent future relationship with the EU. Amending the withdrawal agreement post-Brexit
to the same effect might arguably run into the same problem.

Could this issue be avoided
entirely, by simply adopting a new EU/UK treaty post-Brexit,
which simply includes the transition period rules in the withdrawal agreement?
Those rules could, for instance, constitute the first phase of the future EU/UK
relationship in a post-Brexit association or partnership agreement, being
replaced by more permanent rules whenever those are agreed. There’s an argument
that this would be “going too far” as compared to what the EU treaties permit
as regards a permanent relationship with a non-EU state, but it seems little
more significant than the EU/Turkey agreement discussed above, which provides
for Turkey to fully join the customs union, internal market and common
agricultural policy.

Whether either one of the parties
could denounce the withdrawal agreement
is a different question – which could be particularly relevant for EU27
citizens living in the UK, or those concerned about the Irish border. Denunciation
of treaties is regulated by Article 56 of the Vienna Convention, which provides
that:

1. A treaty which contains no
provision regarding its termination and which does not provide for denunciation
or withdrawal is not subject to denunciation or withdrawal unless:

(a) It is
established that the parties intended to admit the possibility of denunciation
or withdrawal; or

(b) A right of
denunciation or withdrawal may be implied by the nature of the treaty.

It is hard to see how either of
these criteria is satisfied here. There’s no express clause on denunciation and
the parties contemplate the agreement lasting some time, not only eight years
after the end of the transition period (Articles 151 and 152) but for the
lifetime of the citizens protected by Part Two (Article 35). That same clause
points to the nature of the treaty being indefinite – otherwise the citizens’
rights protected by Part Two would be undermined. Equally there is no final
time limit on the Irish Protocol, with only the possibility of replacing it by
an alternative set of rules.

Finally, it’s worth noting that
Article 50 expressly provides for the alternative of extending EU membership – although the UK government does not seem
interested in that idea. While that would give the UK a full role in the EU
while talks continue, it would not avoid the EU side’s belief that there is a
legal problem negotiating fully on the future relationship as long as the UK is
a Member State. There is also the possibility that the withdrawal agreement has
a different date of entry into force
than the two-year default set out in Article 50; but again the UK government
may not be enthused about staying in the EU longer.

Both solutions would raise the political
difficulty of the UK participating in the next elections to the European
Parliament. While some argue that the UK could simply be exempted from this, I
doubt the legal validity of excluding any current EU Member State from
participation in EU elections; and such a decision would surely be vigorously
litigated by those who wanted to vote.

Finally, during the transition
period any attempt to rejoin the EU
would be subject to the normal rules on new Member States’ accession, as noted
in Article 50(5) TEU. These could well be fast-tracked for a country which
already applies most EU law (as in the example of Iceland), but the question
will arise whether the UK’s opt-outs and budget rebate will still remain. The
issue here is whether they will automatically expire on membership, or whetehr
the Treaties and legislation will have to be revised to remove them. (The
exemption from Schengen should necessarily stay in any event, as it’s
necessarily linked to the Irish exemption on the same issue, due to the Common
Travel Area).

Barnard & Peers: chapter 27

Photo credit: Der Speigel

PART FOUR

TRANSITION

Article 121

Transition period

There shall be a transition or
implementation period, which shall start on the date of entry into force of
this Agreement and end on 31 December 2020.

Background: The Commission’s proposal referred to ‘transition’
only. It reflected para 22 of the EU Council negotiation directives. The UK
proposal preferred the term ‘implementation’, which is the UK government’s
proposed term. As a compromise, both terms are used here, although the
withdrawal agreement refers solely to a ‘transition’ period in all other
Articles of the withdrawal agreement. The UK raised some questions about the
end date, but eventually agreed to it.

Comment: The key issues are how the transition period relates to
the rest of the agreement, and whether it can be extended. See the discussion
above on these issues.

The end date is convenient for the EU27 side as it corresponds with the
end of the current multi-annual EU budget cycle. The UK’s desire for a more
flexible date reflected its uncertainty about the timing of being ready post-Brexit,
although its paper referred to a transition/implementation period of “around
two years”, as the Prime Minister mentioned before.

Note that Article 122, discussed below, provides conversely for the
transition period to be potentially curtailed early as regards foreign policy
issues.

Article 122

Scope of the
transition

1. Unless otherwise provided in
this Agreement, Union law shall be applicable to and in the United Kingdom
during the transition period.

However, the following provisions
of the Treaties and acts adopted by the institutions, bodies, offices or
agencies of the Union shall not be applicable to and in the United Kingdom
during the transition period:

(a) provisions
of the Treaties and acts which, pursuant to Protocol (No 15) on certain
provisions relating to the United Kingdom of Great Britain and Northern
Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework
of the European Union or Protocol (No 21) on the position of the United Kingdom
and Ireland in respect of the area of freedom, security and justice, or
pursuant to the provisions of the Treaties on enhanced cooperation, were not
binding upon and in the United Kingdom before the date of entry into force of
this Agreement as well as acts amending such acts;

(b)Article 11(4) TEU, Articles 20(2)(b), 22 and
the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of
Fundamental Rights of the European Union, and acts adopted on the basis of
those provisions.

Background: The JHA exclusion reflects the final sentence of
para 13 of the negotiation directives; the other exclusions are not mentioned
in those directives.

The UK accepted the Commission’s proposal, although the exclusions from
the Charter were added during negotiations. The UK wanted to move the second
exclusion clause to an Annex, and exclude a number of other Treaty clauses:
Article 10(4) TEU (EU political parties); Article 12 TEU (provisions on
national parliaments, apart from 12(a), on consultation of national
parliaments); Article 20 TEU (enhanced cooperation); Article 69 TFEU (national
parliaments and JHA measures); Article 223 TFEU (some rules relating to the
European Parliament); Articles 293-297 TFEU (some rules on the decision-making
process); Articles 326-334 TFEU (enhanced cooperation, except the UK could
still opt in to JHA measures it had opted out of, by using this process);
Article 353 TFEU (Treaty amendments); Article 354 TFEU (suspension of EU
membership); part of the Protocol on national parliaments; and some provisions
of the Euratom treaty.

Comments: Union law is defined in Article 2. Sub-paragraph 1(a)
keeps the UK’s existing opt outs from the single currency, Schengen, Justice
and Home Affairs (JHA) law and enhanced cooperation (a system where some Member
States go ahead and adopt EU law without the others), except where the UK opted
in to EU laws in these areas before Brexit day. Paragraph 4 says more about
enhanced cooperation, while para 5 says more about JHA.

Sub-paragraph 1(b) excludes the Treaty rules and legislation related to
the European citizens’ initiative (on that process, see the case law discussed here)
and also voting and standing for office in the European Parliament and local
government. There is no transitional clause on the situation of those EU27
citizens who were elected to local government in the UK (and vice versa) before
Brexit day, even in the “Separation Provisions” of Part Three of the withdrawal
agreement. Conversely other EU citizenship provisions will logically still
apply. This includes the “Ruiz Zambrano” case law on UK citizen children with
non-EU parents, which I discussed here.

2. Should the Union and the
United Kingdom reach an agreement governing their future relationship in the
area of the Common Foreign and Security Policy and the Common Security and
Defence Policy which becomes applicable during the transition period, Chapter 2
of Title V of the TEU and the acts adopted on the basis of those provisions
shall cease to apply to the United Kingdom from the date of application of that
agreement.

Background: The UK accepted this proposed text. This paragraph is
partly consistent with a statement
adopted by the Council when it adopted the negotiation directives. However,
that statement also referred to the “fight against terrorism and international
crime”, which are JHA issues.

Comments: There are also provisions on foreign policy in
paragraph 7 and in Article 124(6) and (7).

This is the only area where the transition period contemplates a
potential early end to the transitional period. By contrast, the UK Prime
Minister’s Florence speech referred to the possibility of ending the
transitional (or ‘implementation’) period early for a number of issues at
different times. An early end to the transition period in this field would
avoid the awkward situation where the UK becomes bound by foreign policy
measures which it could have vetoed if it were a Member State, although note
that Article 124(6) preserves that possibility in certain circumstances. It
would also end a possibility for linking defence issues to trade issues,
although the UK policy in the Florence speech (and since) was not to insist
upon such a link. A more recent speech by the Prime Minister (discussed here)
goes into more detail on what a “future relationship” treaty in this area might
include.

Legally it is questionable whether the UK and EU would actually be
constrained by the withdrawal agreement if they wanted to sign a treaty
replacing these rules in other fields of EU law during the transition period.
However, this point goes back to whether the withdrawal agreement can be
amended at all, as discussed above.

3. During the transition period,
the Union law applicable pursuant to paragraph 1 shall produce in respect of
and in the United Kingdom the same legal effects as those which it produces
within the Union and its Member States and shall be interpreted and applied in
accordance with the same methods and general principles as those applicable
within the Union.

Background: This proposed para transposes para 14 of the Council
negotiation directives, which refer explicitly to the direct effect and
supremacy of EU law. The UK agreed to the EU proposal without amendment.

4. The United Kingdom shall not
participate in any enhanced cooperation:

(a)in relation to which authorisation has been
granted after the date of entry into force of this Agreement; or

(b)within the framework of which no acts have
been adopted before the date of entry into force of this Agreement.

Background: This paragraph is not reflected in the Council
negotiation directives. The UK agreed to the EU proposal.

Comments: On “enhanced cooperation”, see also para 1(b) of this
Article, discussed above. This clause is particularly relevant to the proposal
on the financial transaction tax, which is subject to the enhanced cooperation
process (without UK participation) but where there is no agreement yet (see
more on the background to the tax proposal here).
Now this paragraph is agreed, the suggestion that the UK might somehow become
bound as such by the tax during the transition period is therefore, as things
stand, frankly scaremongering. There is a risk that the tax would have some
extraterritorial effect upon the City of London, but that risk would equally
exist if the UK were still a Member State, since it could not veto an enhanced
cooperation measure that it was not participating in. It could also have such
an effect if the UK were no longer even a “transition” ex-Member State.

5. During the transition period,
in relation to measures which amend, build upon or replace an existing measure
adopted pursuant to Title V of Part Three of the TFEU by which the United
Kingdom is bound before the date of entry into force of this Agreement, Article
5 of Protocol (No 19) on the Schengen acquis integrated into the framework of
the European Union and Article 4a of Protocol (No 21) on the position of the
United Kingdom and Ireland in respect of the area of freedom, security and
justice shall continue to apply mutatis mutandis. The United Kingdom shall,
however, not have the right to notify its wish to take part in the application
of new measures pursuant to Title V of Part Three of the TFEU other than those
referred to in Article 4a of Protocol No 21.

In order to support continuing
cooperation between the Union and the United Kingdom, under the conditions set
out for cooperation with third countries in the relevant measures, the Union
may invite the United Kingdom to cooperate in relation to new measures adopted
under Title V of Part III TFEU.

Background: This paragraph is reflected in the fourth sentence
of para 13 of the Council negotiation directives. The UK proposed to amend it,
to add: a) the power to opt in to an international agreement which was not yet
in force on Brexit day; b) the power to opt in to additional new JHA measures
(ie not just those amending existing acts the UK was bound by) if agreed with
the EU; and c) for an early removal of this issue from the withdrawal
agreement. As noted above, this is consistent with a statement of the Council,
but not the Commission’s proposal. It is also the subject of a recent speech by
the Prime Minister. For an analysis of the speech and a proposed “future
relationship” treaty, see here.

During negotiations, the EU agreed to add the second sub-paragraph as a
compromise. This does not give the UK the power to opt in to all new measures,
but recognises the possibility of EU cooperation with the UK as a non-EU
country in this field.

Comment: The agreed text means that the UK can opt in to new JHA
laws amending JHA laws which it is already bound by. Note that the UK has
already opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers,
so the suggestion that it could be bound by that law during the transitional
period is pure scaremongering. On the other hand, it cannot opt in to new JHA
measures which do not amend JHA laws which it is already bound by. At
most it can seek to cooperate with the EU in those measures as a non-EU
country, on the same basis as other non-EU countries.

At the end of the transition period, the winding up of cooperation in
this field is dealt with by the proposed separation provisions in Articles
58-61 (criminal law) and Articles 62-65 (civil litigation). The majority of
those proposed provisions have not been agreed yet. There is no proposal for
how to deal with pending proposals to transfer responsibility for asylum
seekers (the “Dublin III” Regulation) at the end of that period.

One provision relevant to this field was initially added in the March
15 draft (in Article 123(7)), but then moved to Article 168 of the treaty,
which has been agreed at the level of policy, but not in detail. It provides
for the possibility, as from Brexit Day, of refusing to surrender a State’s own
citizens under the European Arrest Warrant (EAW) law:

When making the written notification
referred to in this Article, the Union, in respect of any of its Member States
which have raised reasons related to its fundamental structures, may declare
that, during the transition period, that Member State will not surrender its
nationals pursuant to Framework Decision 2002/584/JHA to the United Kingdom; in
such a case, the United Kingdom may declare, no later than 1 month after the
receipt of the Union declaration, that it will not surrender its nationals to
that Member State

The March 19 draft adds references to “reasons related to its
fundamental structures”, as well as the possibility of a reciprocal declaration
by the UK. This clause raises some key questions, in particular what separation
rule will apply to a European Arrest Warrant pending on Brexit Day, and whether
some other obligation applies instead of surrender (extradition treaties often
contain an “extradite or prosecute” rule, although the EAW law also applies to
those who have been convicted already; in that case the obvious course would be
to transfer the sentence using the applicable EU rules). Note that the
majority of those surrendered are not nationals of the State surrendering them;
Germany could still return UK citziens to the UK, for instance.

6. Unless otherwise provided in
this Agreement, during the transition period, any reference to Member States in
the Union law applicable pursuant to paragraph 1, including as implemented and
applied by Member States, shall be understood as including the United Kingdom.

7. By way of derogation from
paragraph 6:

(a) for the
purposes of Articles 42(6) and 46 TEU and of Protocol (No 10) on permanent
structured cooperation established by Article 42 of the Treaty on European
Union, any references to Member States shall be understood as not including the
United Kingdom. This shall not preclude the possibility for the United Kingdom
to be invited to participate as a third country in individual projects under
the conditions set out in Council Decision (CFSP) 2017/2315 on an exceptional
basis, or in any other form of cooperation to the extent allowed and under the
conditions set out by future Union acts adopted on the basis of Articles 42(6)
and 46 TEU;

(b) where acts
of the Union provide for the participation of Member States, nationals of
Member States or natural or legal persons residing or established in a Member
State in an information exchange, procedure or programme which continues to be
implemented or starts after the end of the transition period, and where such
participation would grant access to security related sensitive information that
only Member States (or nationals of Member States, or natural or legal persons
residing or established in a Member State) are to have knowledge of, in such
exceptional circumstances the references to Member States in such Union acts
shall be understood as not including the United Kingdom. The Union shall notify
the United Kingdom of the application of this derogation;

(c) for the
purposes of the recruitment of officials and other servants of the
institutions, bodies, offices or agencies of the Union, any references to
Member States in Articles 27 and 28(a) of the Staff Regulations and in Article
1 of Annex X thereto and in Articles 12, 82 and 128 of the Conditions of
Employment of Other Servants of the European Union, or in the relevant
provisions of other staff rules applicable to those institutions, bodies,
offices or agencies, shall be understood as not including the United
Kingdom.

Background: Paragraphs 6 and 7 were split into two separate
paragraphs during negotiations. Paragraph 6 reflects the second sentence of
para 13 of the Council negotiation directives. However, paragraph 7 does not
reflect those directives.

Comments: Paragraph 7(b) was in the Commission’s first draft. In
its comments, the UK saw little point to this text and placed it in square
brackets for further discussion. It was amended during talks to a) add the
words “which continues to be implemented or starts after the end of the
transition period”; b) reword “info which non-EU citizens aren’t meant to know”
to read ““info which only EU citizens are meant to know” (paraphrasing); c) to
add the word “exceptional” and d) to add the notification requirement in the
final sentence. These amendments don’t appear to be significant.

Paragraph 7(a) was added in the March 15 draft and accepted by the UK.
It concerns “permanent structured cooperation” in the area of defence, from
which the UK decided to opt out when most Member States decided to trigger
that process recently (in the 2017 Council Decision referred to in the text of
para 7(a)). I noted in my earlier annotations that it was odd not to mention
this point. The text sets out a compromise: the UK continues its opt out but,
like JHA measures, can cooperate as a non-EU country in this and other future
defence measures. Note that following paragraph 2 there may be an early EU/UK
treaty in this area which would likely address this issue.

Paragraph 7(c) was added in the March 15 draft and accepted by the UK.
It excludes the UK from EU staff legislation.

Comments: Article 6 (which has been agreed) states that the UK
should be regarded as a Member State when Union law (defined in Article 2(a)),
refers to Member States, except as regards EU institutions, governance of
agencies, or voting in the committees that oversee the adoption of implementing
measures by the Commission.

In effect, although Article 2(b) implicitly defines the UK as not
a Member State, the UK will remain a de facto Member State during the
transition period for the purposes of substantive EU law, but not institutional
EU law.

Note that paragraph 5 is an express derogation from paragraph 1, and
that Articles 124 and 125 lay out specific rules on external action and
fisheries.

2. For the purposes of the
Treaties, during the transition period, the parliament of the United Kingdom
shall not be considered to be a national parliament of a Member State, except
as regards Article 1 and, in respect of proposals which are in the public
domain, Article 2 of Protocol (No 1) on the role of national parliaments in the
European Union.

Background: This paragraph does not explicitly reflect anything
in the Council negotiation directives. The UK accepted the Commission proposal
on this in principle, but the two exceptions were added in the March 19 draft.

It’s not clear what the exception for Article 1 of the withdrawal
agreement is meant to do, since Article 1 only sets out the basic purpose of
the agreement. The exception for Article 2 of the Protocol
on national parliaments means that proposals for EU legislation will still
be sent to the UK parliament. However, the rest of that Protocol will no longer
apply to the UK parliament: it concerns EU consultation documents (Article 1);
national parliament objections (Article 3); a waiting period (Article 4);
Council agendas (Article 5); simplified Treaty amendments (Article 6); the
Court of Auditors (Article 7); bicameral parliaments (Article 8); and COSAC,
the joint EP/national parliament body (Title II).

Comments: It arguably is implicit that if the UK is not part of
the EU institutions, there is no requirement to consult the UK’s national
parliament on proposed EU measures. But even if there is no longer a legal
obligation to do so, it is hard to see what harm would be caused by consulting
the UK parliament, or what legal rule would prevent the EU agreeing to do so
outside the context of the formal role for national parliaments of Member
States set out in the Treaties. Ultimately it seems that there was a compromise
which partly accepts the case for a continued link with the UK parliament
during the transition period.

3. During the transition period,
provisions of the Treaties which grant institutional rights to Member States
enabling them to submit proposals, initiatives or requests to the institutions
shall be understood as not including the United Kingdom.

Comment: This exclusion follows from the removal of the UK from
the institutional law of the EU.

4. For the purposes of participation
in the institutional arrangements laid down in Articles 282 and 283 TFEU and in
Protocol (No 4) on the Statute of the European system of central banks and of
the European Central Bank with the exception of Article 21(2) of that Protocol,
during the transition period, the Bank of England shall not be considered to be
a national central bank of a Member State.

Background: This paragraph does not explicitly reflect anything
in the Council negotiation directives. The exception for article 21(2) of the
ECB Protocol
was added to the March 19 draft; it means that the Bank of England can still
act as a fiscal agent for those buying government debt without this violating
the Treaties’ no-bailout clause.

Comments: Arguably it’s implicit that if the UK is not part of
the EU institutions, it follows that the Bank of England does not have the
status of a national central bank in its relations with the ECB.

5. By way of derogation from
paragraph 1 and from Article 6, during the transition period, representatives
or experts of the United Kingdom, or experts designated by the United Kingdom,
may, upon invitation, exceptionally attend meetings or parts of meetings of the
committees referred to in Article 3(2) of Regulation (EU) No 182/2011, of
Commission expert groups, of other similar entities, or of bodies, offices or
agencies where and when representatives or experts of the Member States or
experts designated by Member States take part, provided that one the following
conditions is fulfilled:

(a) the
discussion concerns individual acts to be addressed during the transition
period to the United Kingdom or to natural or legal persons residing or
established in the United Kingdom;

(b)the presence of the United Kingdom is
necessary and in the interest of the Union, in particular for the effective
implementation of Union law during the transition period.

During such meetings or parts of
meetings, the representatives or experts of the United Kingdom or experts
designated by it shall have no voting rights and their presence shall be
limited to the specific agenda items that fulfil the conditions set out in
point (a) or (b).

Background: The first half
of this paragraph reflects para 19 of the Council negotiation directives, and
the second half elaborates upon that rule. Note that a statement
by the Commission commits itself to issue a guidance document on how to apply
this rule consistently in practice.

The UK
objected to the first draft and obtained the removal of the words
“case-by-case” during negotiations, as from the 19 March draft. However, the UK
also objected to the word “exceptional”; wanted the test of “necessary and in
the interests of the Union” to be dropped; and suggested more consultation on
other measures in a new para.

A footnote
refers to the official publication of Regulation
182/2011, which sets out general rules for Member States’ participation in
committees which govern the Commission’s use of implementing powers.

Comments:
As in many other aspects of the transition period rules, it is questionable whether
it is really necessary to limit the UK’s purely consultative role to this
extent. Certainly there is only a weak argument that it is legally required.
There was, however, a small compromise on this point during negotiations.

6. During the transition period,
the United Kingdom shall not act as leading authority for risk assessments,
examinations, approvals and authorisations at the level of the Union or of
Member States acting jointly referred to in the [acts/provisions] listed in
Annex [y+6].*

Background: This paragraph does not explicitly reflect anything
in the Council negotiation directives. The UK objected to it but accepted it,
although the last phrase (beginning “acting jointly…”) was added in the March
15 draft. The annex it refers to is not yet drafted, and the footnote (added in
the March 19th draft) states that “Agreement on this paragraph is
conditional on the provision of an exhaustive list in Annex y+6, building on an
indicative list already provided.”

Comments: It is not so obviously implicit that the UK’s
exclusion from the EU institutions means that it cannot have a role as lead
authority in risk assessment et al. Put another way, this is arguably an issue
of EU substantive law – where the UK will in effect remain a Member State during
the transition period – rather than EU institutional law, where it will not. If
the EU can trust the UK to implement EU law, why not accept that it can have a
role in risk assessment, et al?

7. During the transition period,
where draft Union acts identify or refer directly to specific Member State
authorities, procedures, or documents, the United Kingdom shall be consulted by
the Union on such drafts with a view to ensuring the proper implementation and
application of that act by and in the United Kingdom.

Background: This paragraph does not explicitly reflect anything
in the Council negotiation directives. It was added in the March 15 draft. It
reflects a compromise with the UK version which stated that when EU legislation
is proposed, the EU “shall submit copies to the United Kingdom, and may seek
advice from experts of the United Kingdom”.

Comments: Another issue where the UK negotiators secured an
amendment to the text, although it falls some way short of what the UK had
proposed. In practice it is unusual for EU legislation to refer to specific
Member State authorities.

Article 124

Specific arrangements
relating to the Union's external action

1. Without prejudice to Article
122(2), during the transition period, the United Kingdom shall be bound by the
obligations stemming from the international agreements concluded by the Union,
or by Member States acting on its behalf, or by the Union and its Member States
acting jointly as referred to in Article 2(a)(iv).**

Background: This paragraph transposes para 17 of the Council
negotiation directives. The cross-reference to Article 2(a)(iv) was added in
the March 15 draft.

A footnote, added in the March 19 draft, states that: “The Union will
notify the other parties to these agreements that during the transition period,
the United Kingdom is to be treated as a Member State for the purposes of these
agreements.” This is a compromise;
the UK had sought an amendment to state that “Any reference to Member States,
the European Union, or Euratom in such a bilateral international agreement
shall be understood as including the United Kingdom.” This followed from atechnical
note by the UK side.

Comments: The UK will still be bound to the EU as regards
treaties with non-EU states. Logically this applies vice versa and it would have
been preferable to spell that out directly. It should follow that individuals
can still invoke the direct effect of such treaties (where it exists) in the UK
during the transition period (for instance, Turkish citizens with rights under
the EU/Turkey association agreement framework).

However, the UK is not bound to non-EU countries to apply such
treaties; neither can non-EU countries directly invoke such treaties against
the UK. Since this could in particular affect UK exports, it makes sense
for the UK to focus on replicating such treaties: see para 4 below.

The UK’s proposed alternative approach would have circumvented this,
but its proposed version of the withdrawal agreement would arguably have bound
non-EU countries who are not party to the withdrawal agreement, which is arguably
untenable as a matter of international law. This seemed to contradict the UK
government’s own technical note which accepted that non-EU countries would have
to agree by a simplified process that the UK would still be regarded as part of
the EU during the transitional period.

In the agreed compromise version, the assumption seems to be to hope
that a unilateral notification by the EU regarding its customs territory (and
other issues) will suffice for non-EU countries, legally and politically. Time
will tell if this assumption is correct. In any event, the compromise regarding
para 4 will make it somewhat easier for the UK to address the problem if it is
not, although note that new treaties pursuant to para 4 could not come into
force before the end of the transition period. So there is some risk of a legal
gap during that period.

2. During the transition period,
representatives of the United Kingdom shall not participate in the work of any
bodies set up by international agreements concluded by the Union, or by Member
States acting on its behalf, or by the Union and its Member States acting
jointly, unless:

(a)the United Kingdom participates in its own
right; or

(b) the Union
exceptionally invites the United Kingdom to attend meetings or parts of
meetings of such bodies, as part of its delegation, where the Union considers
that the presence of the United Kingdom is necessary and in the interest of the
Union, in particular for the effective implementation of those agreements
during the transition period. Such presence shall only be possible where Member
States participation is allowed under the applicable agreements.

Background: This paragraph transposes para 17 of the Council
negotiation directives. The initial draft had no exceptions; the first
exception was added in the 28 February draft, and the second exception in the
March 15 draft. The words “on a case-by-case basis” were then dropped in the
March 19 version. This reflects the UK position, which pushed for amendments to
give participation rights to the UK in accordance with proposed amendments to
the previous Article; indeed this exception is very similar to the agreed
Article 123(5)(b).

Comments: The compromise here is a modest but significant
concession to the UK.

3. In accordance with the
principle of sincere cooperation, the United Kingdom shall refrain, during the
transition period, from any action or initiative which is likely to be
prejudicial to the Union's interests, in particular in the framework of any
international organisation, agency, conference or forum of which the United
Kingdom is a party in its own right.

Background: This paragraph is not reflected in the Council
negotiation directives. The UK sought to delete it, but it remained.

Comments: This para explicitly sets out the obligation that
would anyway arguably still apply implicitly, since other EU Treaty provisions
on sincere cooperation would still be applicable to the UK. The UK’s proposed
deletion therefore made sense.

The particular relevance of the “sincere cooperation” principle in EU
external relations law is that it limits Member States from negotiating
treaties; but that issue is explicitly addressed by para 4. Note that the UK
would presumably have more freedom to act once any early post-Brexit treaty on
EU/UK security and defence cooperation or policing and criminal law came into
force (see Article 122(2) above).

4. Notwithstanding paragraph 3,
during the transition period, the United Kingdom may negotiate, sign and ratify
international agreements entered into in its own capacity in the areas of
exclusive competence of the Union, provided those agreements do not enter into
force or apply during the transition period, unless so authorised by the Union.

Background: This para transposes the wording of the final
sentence of para 16 of the Council’s negotiation directives, with the important
change that it only applies to “exclusive” competence of the EU. This change
narrows the limits on the UK’s external action.

The UK sought to add an exception for treaties “in order to give effect
to the continuing application of the agreements referred to in paragraph 1”.
This was not accepted, but the original EU wording (“the United Kingdom may not
become bound by”) was altered in the March 19 version to read that “the United
Kingdom may negotiate, sign and ratify international agreements…provided those
agreements do not enter into force or apply during the transition period”.

Comments: It might be argued that the compromise text which the UK
agreed is only a superficial change, but the “sincere cooperation” principle
referred to in para 3 does limit Member states’ power to negotiate or sign
treaties, according to ECJ case law. So an express exclusion from those limits
is significant.

Note that the exact extent of exclusivity of EU external competence is
often disputed and even litigated.

There is no mention of the process of approval of the UK becoming bound
by treaties. Note that one of the statements
attached to the Council negotiation Directives says that the Council will
approve the UK becoming bound by such treaties, in accordance with the usual
Treaty rules.

The UK’s proposal that it would not need authorisation to agree be
bound by treaties which simply continue pre-Brexit rights and obligations in
force made sense, although from the EU27 perspective, there might be a valid
concern that without some sort of consultation process such a clause could be
used to do more than copy the UK’s previous rights and obligations.

5. Without prejudice to Article
122(2), whenever there is a need for coordination, the United Kingdom may be
consulted, on a case-by-case basis.

Background: This para is not reflected in the Council’s
negotiation directives. The original proposal read: “…whenever there is a
requirement for coordination, including on sanctions policy, or representation
in international organisations or conferences, the United Kingdom may be
consulted by the Commission or the High Representative of the Union for Foreign
Affairs and Security Policy, as the case may be, on a case-by-case basis.” The
more general version first appeared in the 28 February text, and remained the
same afterward.

The UK position on the original version suggested: to make consultation
mandatory; to “recognise the need” for it rather than applying “whenever there
is a requirement”; to drop “on a case by case basis” and to provide for further
modalities to be agreed. The second of these four proposals was accepted by the
EU27, as part of the broader amendment of the text.

Comments: This paragraph takes account of the UK’s significant
foreign policy rule, in particular regarding sanctions, although there is
ultimately no specific reference to them. In the earlier versions of the text,
there was a risk that, due to the loss of its veto over EU foreign policy
during the transition period, the UK could be legally bound to use (or not to
use) its Security Council veto during the transition period, so these
consultations would be particularly important. However, the addition of para 6
(see below) makes this less of an issue.

As with para 3, in the foreign policy context the UK would presumably
have more freedom to act once any early post-Brexit treaty on EU/UK security
and defence cooperation came into force (see Article 122(2) above). Given the
central importance of foreign and defence policy the UK’s proposal for
mandatory consultation made sense.

6. Following a decision of the
Council falling under Chapter 2 of Title V TEU, the United Kingdom may make a
formal declaration to the High Representative of the Union for Foreign Affairs
and Security Policy, indicating that, for vital and stated reasons of national
policy, in those exceptional cases it will not apply the decision. In a spirit
of mutual solidarity, the United Kingdom shall refrain from any action likely
to conflict with or impede Union action based on that decision and the Member
States shall respect its position.

Background: this text
was not in the original proposals. It does not reflect the Council negotiation
position. The UK did not make a specific formal proposal on this. The text was
added in the March 15 version. I had raised the issue of the UK being required
to follow EU foreign policy measures in my earlier annotations.

Comment: This is a significant possibility for the UK not to be
bound by an EU measure during the transition period. The wording is adapted
from two different rules on foreign policy decision-making in Article
31 TEU, although note that the consequence of a UK government declaration
here would not be exactly the same as the provisions in the EU Treaty. This
would not be a veto as such – since the EU could still adopt the planned act.
Rather it would be what the EU calls a “constructive abstention” – the UK would
not be bound by what the EU does, but would have to avoid frustrating it.

Note that since Union law applies to the UK during the transition
period, this must include Article 275 TFEU, which limits Court of Justice
jurisdiction over EU foreign policy measures to cases about sanctions and
disputes over EU competence.

The future relationship treaty foreseen in Article 122(2) may make this
provision redundant.

7. During the transition period,
the United Kingdom shall not provide commanders of civilian operations, heads
of mission, operation commanders or force commanders for missions or operations
conducted under Articles 42, 43 and 44 TEU, nor shall it provide the
operational headquarters for such missions or operations or serve as framework
nation for Union battlegroups. During the transition period, the United Kingdom
shall not provide the head of any operational actions under Article 28 TEU.

Background: This para is not reflected in the Council’s
negotiation directives. The words “or serve as framework nation for Union
battlegroups” were added in the 28 February version. The UK placed this text in
in square brackets for discussion, but ultimately agreed to it.

Comments: The future relationship treaty foreseen in Article
122(2) may make this provision redundant. While this para is consistent with
the overall thrust of removing the UK from roles in EU bodies, it is liable to
make it harder to run an effective EU defence policy, given the extent of the contribution
by the UK military.

It’s notable that the guidelines
on the EU/UK future relationship don’t copy this limitation, and it’s surely
possible to imagine the idea of an ‘EU-UK’ battlegroup, and similar approaches
to defence cooperation in a future treaty, to reflect the extent of the
possible UK contribution in this field. Only the Putins of the world would
benefit from a rigid approach in this area.

Article 125

Specific arrangements
relating to fishing opportunities

1. As regards the fixing of
fishing opportunities within the meaning of Article 43(3) TFEU for any period
falling within the transition period, the United Kingdom shall be consulted in
respect of the fishing opportunities related to the United Kingdom, including
in the context of the preparation of relevant international consultations and
negotiations.

2. For the purpose of paragraph
1, the Union shall offer the opportunity to the United Kingdom to provide
comments on the Commission Annual Communication on fishing opportunities, the
scientific advice from the relevant scientific bodies and the Commission
proposals for fishing opportunities for any period falling within the
transition period.

3. Notwithstanding Article
124(2)(b), with a view to allowing the United Kingdom to prepare its future
membership in relevant international fora, the Union may exceptionally invite
the United Kingdom to attend, as part of the Union delegation, international
consultations and negotiations referred to in paragraph 1 of this Article, to
the extent allowed for Member States and permitted by the specific forum.

4. Without prejudice to Article
122(1), the relative stability keys for the allocation of fishing opportunities
referred to in paragraph 1 of this Article shall be maintained.

Background:
Para 1 is the original proposal, with the addition of a reference to the
Commission and international talks, which were added in the February 28 draft.
The reference to international negotiations was added to para 1 in the March 15
draft. The other three paras were also added in the March 15 draft. The initial
Commission draft reflected para 21 of the Council negotiation Directives, which
states that “Specific consultations should also be foreseen with regard to the
fixing of fishing opportunities (total allowable catches) during the transition
period, in full respect of the Union acquis.”.

The UK
position was to “agree the fishing opportunities prior to the decision-making
process” and for the UK to “participate alongside the EU and other coastal
states in international fisheries negotiations”, with the “modalities” to be “agreed
between the Parties.”

Comments: Fisheries has been the most controversial issue in the initial
UK reaction to the transition deal, although it should also be noted that the
deal equally preserves full market access for UK fisheries’ main export market
during that period. The catch allocation/market access trade off is going to be
central to the future relationship talks with the EU, given the EU’s intention
to link these two issues in its guidelines on the future relationship.

If the
transition period ends as proposed at the end of 2020, this provision would
only be relevant for one year. It could continue for longer if in some way the
transition period is extended (assuming that it still applied to fisheries).

Paras 2 and 3
elaborate further upon the consultations and international negotiations points
referred to in para 1, but para 4 is separate: it freezes the catch allocations
existing on Brexit day. As such it is a compromise (suggested in my earlier
annotations) which prevents a possible “grab” of the UK fisheries catch by EU
countries during the transition period, given that the UK objective of
exempting that issue from the transition period rules was not going to be
accepted.

Article 126

Supervision and
enforcement

During the transition period, the
institutions, bodies, offices and agencies of the Union shall have the powers
conferred upon them by Union law in relation to the United Kingdom and natural
and legal persons residing or established in the United Kingdom. In particular,
the Court of Justice of the European Union shall have jurisdiction as provided
for in the Treaties.

The first paragraph shall also
apply during the transition period as regards the interpretation and
application of this Agreement.

Background: As noted
already, “Union law” is defined in Article 2 of the agreement. This reflects
the first sentence of para 18 of the Council negotiation Directives. The UK
accepted the text. The second sub-paragraph, concerning the withdrawal
agreement as distinct from EU law generally, was added in the March 15 draft.

The original
Commission proposal on the transition period also included an Article on
European Schools, but that has been moved (with amendments) to Article 120,
where it forms part of the “Separation Provisions” rules in the withdrawal
agreement. The Commission’s original proposal also contained a controversial
footnote on dispute settlement during the transitional period; this was
ultimately included (in amended form) as Article 165 of the agreement, which is
not yet agreed. I commented on that proposal here.

The UK pushed
also for a “good faith” clause in relation to the transition period. It was
agreed as Article 4a, in Part One concerning common provisions. It applies to
the entire agreement, not just the transition period part; but it does not set
out any specific substantive rules.